Wednesday, October 9, 2013

NOTA: Article by N.Gopalaswami, former CEC

NOTA small matter, this

October 9, 2013

N. GOPALASWAMI

The Supreme Court's recognition of a negative vote as a constitutional right should be followed by acknowledging it as a rejection of all candidates

The recent NOTA (none of the above) order of the Supreme Court makes for a hat trick of decisions by the judiciary, striking a blow for electoral reforms. The attempt to reverse one of them — to save MPs found guilty of offences that would instantaneously unseat them — was thwarted because of public pressure and the President's reported reluctance to sign the Representation of the People (Amendment and Validation) Ordinance. It is said that nature abhors vacuum. In the face of the government's reluctance to move ahead in bringing meaningful electoral reforms, the courts have had to intervene wherever they could to give some push to the reforms and to restore the public's faith in the system.

Government's failure

The NOTA case is a classic example of the government's failure to do the right thing at the right time. The Election Commission of India (ECI) moved the Law Ministry in 2001 for an amendment to the rules to provide for a button in electronic voting machines in order to protect the identity and secrecy of a voter who does not want to vote for any candidate. That was the equivalent of the unmarked ballot paper of the earlier era. The ECI received no response to the proposal for amending the said rule, although the Minister in charge needed neither the Union Cabinet's nod nor Parliament's assent. In 2004, the then Chief Election Commissioner, T.S. Krishnamurthy, reiterated the proposal after christening the button as 'none of the above' but, for the first time, clearly articulating that it was to "to enable a voter to reject all the candidates, if he chooses so." By then, the PUCL had already moved the Supreme Court in the matter. The case came up for hearing in 2009 but in the intervening years the protagonists for the 'no vote' button had raised the pitch claiming for it the attribute of 'rejection' of candidates which it is not, at least not yet. Presently, it will only enable a voter not to vote in favour of any candidate. So the votes recorded against this button will have the same fate as the 'invalid' votes of the ballot paper era and would have no role in determining the winner. With EVMs, the 'invalid vote' category got eliminated as mistakes like wrong marking and multiple marking became a thing of the past. Now, with this button that column will come back to life.

If that be so, is it not a minor matter, a storm in a tea cup? To answer it, one should look closely at some pronouncements of the Supreme Court in this case. It is worthwhile to note that by the time the matter came up in the Supreme Court in 2009, the government had understood the potential of this button to create a 'negative' impact in the short run, leading to the demand for a right to reject candidates and seek fresh elections.

The government, therefore, reacted strongly — it sought to get the petition dismissed outright arguing that since the right to vote was not a constitutional right but only a statutory right, the petition filed under Article 32 was not maintainable and so should be thrown out. This led to further delay in the disposal of the petition as it awaited the constitution of a larger bench. The Supreme Court verdict has arrived almost a decade after the petition was filed, in favour of the NOTA button but with far-reaching consequences.

Wider choice for voters

The reactions to this order have been varied. Some have chosen to describe it "as a minor issue," pointing out to the lack of action to carry out comprehensive electoral reforms. Some have welcomed it as it may increase voter turnout, an aspect which the Supreme Court judges also pointed out. Some have felt that it will make parties more responsible, which will nominate better candidates. The judges themselves pointed out that it can widen participation and curb impersonation. A careful reading of the judgment indicates that the judges strove to make this happen through some deft side-stepping and innovative interpretation of past judgments of the Supreme Court and provisions of the Constitution, on the nature of the right to vote, with the sole objective of giving the voter a wider choice.

To quote from the verdict: "Democracy is about choice. This choice can be better expressed by giving the voters an opportunity to verbalise themselves unreservedly and by imposing least restrictions on their ability to make such a choice." The Supreme Court was emphatic that the no vote option "gives the voter the right to express his disapproval with the kind of candidates that are being put up by the political parties." Going further, the judges declared that the "provision of negative voting would be in the interests of promoting democracy."

This seemingly innocuous judgment to add a button to the EVM may sound very plebian but the skilfully worded order has put a seal of approval on the distinction made between the right to vote, which it confirmed was a statutory right, and the act of exercising that right by the casting of a vote which it confirmed as a constitutional right as enshrined in Article 19(1)(a), the right to freedom of speech and expression. It then a added a constitutional lustre to 'negative voting' by declaring "not allowing a person to cast vote negatively defeats the very freedom of expression and the right ensured in Article 21, i.e., the right to liberty."

The Supreme Court's recognition of "negative voting" as a constitutional right is by all means a giant step forward for the voter. Civil society has thus won an important and vital point. From here the next logical step will be one of raising the status of the button to that of "negative vote" with consequences, in other words a vote for 'rejection' of all candidates, instead of its current status of merely being "no vote or negative vote." This step would inevitably have to follow if political parties do not see the writing on the wall and belie the expectation that NOTA "will indeed compel the political parties to nominate a sound candidate," as the Supreme Court said.

If parties keep imposing tainted candidates on voters or, while selecting candidates, pay scant regard to their performance or integrity, the electorate can hit back with NOTA. A time will come with demands for fresh election with a fresh set of candidates if, in the first election, NOTA scores the highest votes. If that happens, even if the lawmakers are reluctant, the Supreme Court may not be unsympathetic given the contours of this judgment. With 12 crore first time voters who will have NOTA before them in the coming election to Parliament, the stage is set for the electorate to challenge political parties' commitment to decriminalising the legislative bodies. A comprehensive electoral reform is the need of the hour but if the political class keeps dragging its feet, courts may be willing to clean the Augean stables. For their part, those who moved the Supreme Court in this matter and other civil society organisations would do well to educate voters of the power the court has placed in their hands and let the button beep louder and speak for them. NOTA will not remain a small matter for long.

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